' MUHAMMAD MUSHTAQ CHAUDHARY.---As both the appeals arise out of the same judgment, therefore, these are being consolidated and disposed of together through this judgment.
2. The above titled appeals have been directed against the judgment of District Court of Criminal Jurisdiction Muzaffarabad dated 31-3-2010, whereby Fazal-ur-Renman appellant was convicted and sentenced to 25 years' rigorous imprisonment under section 302(B), A.P.C, while Ghazi accused-respondent was acquitted of the charge.
3. Brief facts forming background of the appeals are that Muhammad Dullah, complainant, lodged a written report at Saddar Police Station Muzaffarabad alleging therein that he belongs to Afghanistan and is doing business as carpet seller in Muzaffarabad for the last one year. He further stated that he had abducted Mst. Jamila daughter of Naseerullah from Peshawar Refugee Camp three years prior to -the occurrence and solemnized Nikah with her at Karachi. Out of the wedlock, he has two sons one aged 1.1/2 year and other aged 2 months. He along with his wife came in Muzaffarabad one year ago and took a room on rent from Abdur Rashid at upper Bala-Peer. He also stated that on account of abduction of Mst. Jamila his relatives were angry with him and did not want to negotiate compromise with him. Ghazi Khan, accused, cousin of his wife, who had grudge and rancor, has also been threatening him through telephone calls. Three/four days prior to the occurrence, Ghazi Khan came at the complainant's residence in Muzaffarabad and told him that he will negotiate compromise between the parties. The complainant further alleged that for the last 3/4 days Ghazi Khan, accused, was also living with him in his house: On 4-5-2009, when complainant went to purchase goods from bazaar at 2-00, p.m., Ghazi Khan accused was present at home. At 7-30 p.m., the owner of the house informed him through telephonic call that his wife had been murdered. On this information, he arrived at home and it was told to him that Ghazi accused, who was accompanied by an unknown person, murdered his wife by making fire and fled away from the spot whereas his wife, soaked in blood, was lying dead. On hearing firing sound, Noman and Muhammad Riaz arrived at the place of occurrence and saw the accused-persons fleeing away.
4. On this report, a case under sections 302 and 34, A.P.C. Was registered against the accused at Saddar Police Station Muzaffarabad. During investigation section 13/20/65,Arms Act was added.
5. The accused were apprehended on 5-5-2009. After usual investigation, both the accused were sent to face trial before District Court of Criminal Jurisdiction Muzaffarabad. The statements of accused under section 242, Cr.P.C. Were recorded" on 15-7-2009, who denied the guilt.
' Thereafter, prosecution was ordered to produce evidence. The prosecution produced as many as 14 witnesses in support of its case. After recording prosecution evidence, the salient features of prosecution evidence were put to the accused required by section 342, Cr.P.C. Who once again denied the guilt and claimed to be an innocent.
6. After conclusion of the trial, the District Court of Criminal Jurisdiction Muzaffarabad convicted Fazal-ur-Rehman appellant and awarded him sentence to 25 years' rigorous imprisonment under section 302 APC and two years' imprisonment under section 13 of the Arms Act, 1965. He was also ordered to pay Rs,2,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased and in default of payment of compensation he shall have to undergo further simple imprisonment for six months. The benefit of section 382, Cr.P.C., was also extended in his favour. The other accused Ghazi Khan was acquitted of the charge vide judgment dated 31-1-2010.
7. Feeling aggrieved from the aforesaid judgment, Fazl-ur-Rehman, convict-appellant, filed Criminal Appeal No,19 of 2010 against his conviction whereas Muhammad Dullah complainant, also filed Criminal Appeal No,21 of 2010 for enhancement of sentence awarded to Fazl-urRehman convict-appellant, and for awarding sentence to Ghazi Khan, acquitted-accused.
8. Sardar Shaukat Ali, the learned counsel for the convict-appellant argued that the court below while convicting the appellant failed to appreciate that the appellant was not nominated in the F.I.R and he was falsely implicated in the case by the complainant with the connivance of Police. He further argued that the occurrence was not witnessed by anybody and there was no independent eye-witness. The identification parade was not conducted for identification of the accused. No body identified the accused persons, before or after the occurrence. Learned counsel contended that this case is not a case of direct evidence rather it is case of circumstantial evidence. The report of. Chemical Examiner to the effect that the articles are stained with blood and to determine the origin of blood and blood grouping, the material was sent to Serologist, but the report of Serologist has not been brought on record by the prosecution. The recovery of weapon of offence was fake and fabricated as it was made at the Police Station in presence of Police official. The learned counsel pointed out that the place of occurrence was a thickly-populated area but no independent witness was cited by the prosecution which makes the case doubtful. He further contended that deceased was murdered by the appellant himself because she was willing to go back to join her parents. Moreover, the witnesses produced by prosecution were not found "Adil."
The Court below arrived at the wrong conclusion without taking into consideration the relevant circumstances. It is settled principle of law that the benefit of doubt has to be extended to an accused but in the present case serious illegality was committed by the Court below while convicting the appellant by putting reliance on the highly doubtful evidence brought on record by the prosecution. The learned counsel argued that the case against Ghazi accused respondent was also not proved beyond any shadow of doubt as the prosecution failed to produce any independent witness, thus he was rightly acquitted by the said Court. The impugned judgment to the extent of conviction recorded against Fazl-ur-Rehman, convictappellant may be set aside by accepting the appeal and he may be acquitted of the charge while the appeal filed by the complainant against Fazl-ur-Rehman, convict, and Ghazi, acquitted-respondent, may please be dismissed.
9. On the other side, the complainant version is that the F.I.R. Was lodged promptly without any delay and during the trial it was proved that due to marriage of complainant with the deceased, the convict-appellant and Ghazi Khan, respondent, nourished, grudge against deceased and complainant, on account of which both the accused have murdered his wife. According to complainant, they came in the house of complainant to kill his wife; therefore, their presence at the place of occurrence was not doubtful. They were examined by the prosecution. Despite lengthy cross-examination the defense failed to obtain anything favourable. The witnesses successfully passed the test and narrated what they saw. Their deposition was confidence-inspiring. The allegation of firing against the convict-appellant was corroborated by post mortem report that the deceased died of the injuries caused by .30-bore pistol. It was also supported by recovery of weapon of offence, which was recovered at the instance of convict-appellant, the crime empties seized from the spot, the teeth of deceased and confirmatory Forensic Science Expert's report also support the prosecution version. The witnesses were local and independent as they were not related to the deceased. There was nothing on record to show that they were inimical towards the convict or were interested in his conviction. The complainant had no reason to implicate the convict in a false case by leaving the real culprit. The Court below while passing the impugned judgment rightly appreciated the evidence and convicted the Fazl-urRehnian, convict-appellant, however, the trial Court committed serious illegality while awarding lesser punishment of 25 years' rigorous imprisonment. In view of over all circumstances of the case, normal punishment of death sentence provided for the offence of murder was warranted, while it was established that the required standard of evidence for awarding the punishment was available but the court below also committed grave error while acquitting Ghazi Khan accused-respondent, therefore, by accepting the appeal filed by the complainant, the impugned judgment may be set aside and lesser sentence awarded to Fazal-ur-Rehman appellant may please be enhanced.
10. Tariq Alam, the learned assistant Advocate-General appearing on behalf of the State fully owned and supported the arguments advanced on behalf of the complainant and submitted that both the convicted and the acquitted respondents actively participated in the murder of deceased and their participation has been proved by un rebutted evidence; therefore, both accused are liable to be capital punishment.
11. We have heard the arguments of both the parties and gone through the record of the case. We have observed that it was an unseen occurrence and there was no direct evidence in this case.
12. The prosecution case is basically based upon (1) complainant's version, (2) motive alleged by the prosecution, (3) circumstantial evidence in shape of recovery of firearm weapon, Photos and postmortem report etc.
13. Now, we shall appreciate all these pieces of evidence one by one.
14. Muhammad Dullah complainant (P.W.1), deposed, in his statement recorded on 1-9-2009, that he alongwith his family was living in a rented room of the house of Abdul Rasheed at Bala-Peer. He deposed that he abducted Mst. Jamila, deceased, from Peshawar and took her to Karachi, where they solemnized Nikah and lived over there for about 10 months, thereafter they came to Muzaffarabad. He further deposed that when he married with Mst. Jamila, their relatives were happy, but in the F.I.R he disclosed that their relatives were angry due to abduction of Mst. Jamila, deceased. He also stated that Mst. Jamila, deceased, was previously betrothed to Fazl-ur-Rehman, accused, but this fact was not mentioned in the F.I.R. The complainant further deposed that after their arrival at Muzaffarabad he tried thrice through Jirga to negotiate compromise with his in-laws but they did not agree and said that they will commit murder, thereafter 3/4 days prior to the occurrence, Ghazi, accused, came at the residence of complainant in Bala-Peer, Muzaffarabad, and said to the complainant that he will negotiate compromise between the parties but the complainant distrusted on him and-when Ghazi, accused, made assurance that he will not do any incident, then complainant allowed him to live with him, but in the F.I.R. The complainant simply A says that Ghazi, accused, has been extending threats to him through telephonic calls and for the last 3/4 days he was living at the residence of complainant, but no such record of telephone calls has been placed on record by the prosecution. It is quite surprising for us to understand that a person who has been extending life threats to the abductor (complainant) due to abduction of his close female relative when comes at the residence of abductor, he without any hesitation allows him to stay with him in the same rented room where abductor's children and wife were also living.
The complainant deposed in his statement that he received information of the murder of Mst.
Jamila, deceased, at about 5 O'clock, whereas according to F.I.R., he received information by owner of the house at 7:30 p.m.
15. Noman Riaz (P.W.2) deposed, in his statement recorded on 22-2-2010, that on 4-5-2009 he was sleeping in his house on hearing firing he came out and saw that a lot of people were gathered there. Mst. Jamila socked in blood was lying dead on the floor. He along with Riaz chased two persons, who fled away. The witness does not disclose the names of the persons who fled away. He stated that he and Rasheed informed the Police about the occurrence. He stated that he did not see Ghazi accused while wearing the recovered clothes. The witness also deposed that he does not know that to whom the clothes were given for washing. He further deposed that he does not have any knowledge about arrival of the relative of complainant at his residence. The witness admits that 3/4 papers were got signed by police at Police Station. He also disclosed that he did not witness the deceased to be murdered rather he heard a sound of firing, which means that he is not an eye-witness of the occurrence.
16. Muhammad Riaz (P.W.3) testified, in his statement recorded on 19-10-2009, that when the murder was committed he was in Bazaar and he arrived at the spot after two hours of the occurrence. He also admits that he does not know that who has committed murder of the complainant's wife. He further stated that he was called at police station where he told the SHO that he had no knowledge about the incident.
17. Abdul Rasheed (P.W.4) stated that 3/4 days prior to the occurrence, Ghazi, accused, was living with the complainant, it was told to him by complainant that Ghazi is cousin of Mst. Jamila. He deposed that at about 7/7:30pm he was in the Bazaar and when came back, he heard noise and sound of firing, some people were also gathered over there and the police had arrived at the spot.
He informed the complainant through telephone call to come home because his wife had been murdered. The witness also admits that he had given a room to the complainant on rent. The witness further admits that it is not possible for a person to keep his family along with a stranger in a room together.
18. The analysis of above mentioned evidence of the prosecution witnesses indicates that they neither saw the occurrence directly nor recognized anybody while fleeing away from the spot rather they arrived at the spot when the occurrence had taken place.
19. Now we advert to the circumstantial evidence. The prosecution has based its pistol .30-bore, two photographs of complainant, his mother and deceased from Fazl-ur-Rehman, convict- appellant, recovery of the clothing of Ghazi accused and experts' reports etc.
20. The prosecution heavily relied upon the evidence of recovery of .30-bore pistol Exh.PE, recovered in presence of Shahzad Khan SG Constable No,333 and Zameer Haideri DFC No,167. No doubt, the bullets were shown to have been fired from the same pistol. Although both witnesses corroborate each other, but it will be pertinent to note here that the occurrence took place on 4-5-2009 and the accused were arrested on 5-5-2009 whereas the recovery of pistol was made from bushes on 15- 9-2009, after 10 days of their arrest, and both the recovery witnesses Shahzad Khan (P.W.9) and Zameer Haideri (P.W.10) are police employees, whereas no independent witness was associated with recovery proceedings, which makes the case of prosecution doubtful.
21. The recovery of a mobile, two photographs and a diary Exh.PD was allegedly made from the pocket of Fazl-urRehman, accused, in presence of Muhammad Hussain IHC (P.W.7) and Shaukat Hussain SG (P.W.8). Both the witnesses deposed that a mobile, a diary and two photos out of which one photo was of deceased and the other was of complainant and 'his mother, whereas a perusal of recovery memo Exh.PD, prepared by S.H.O. Reveals that the other photo was of complainant and the mother of deceased, which seriously creates doubt the recovery of above mentioned articles from Fazl-ur-Rehman, accused. Furthermore, Shaukat Hussain (P.W.8) in cross-examination deposed that it is correct that the accused were arrested from main road. The witness also deposed that the other photo was of complainant and a lady, which means be does not know the other woman present in the photo along with the complainant. These witnesses are also police employees and the police did not bother to make recovery in presence of some independent witnesses. In this manner, the evidence of recovery witnesses D is not worthy of any credence.
22. Syed Asad Ali Bukhari SHO (P.W.17) deposed the parrot like story. He stated in his statement recorded on 8-3-2010 that on 5-5-2009 he along with other police constables was busy in search of accused-persons, when he received information by a reliable source that two persons are wandering here and there at Darra-Batangi in search of path, thereupon he along with companions went there and arrested the accused. It is Important to note here that the S.H.O. Does not show the source of information, which was necessary to strengthen the prosecution case. He further deposed that on personal search of Fazl-ur-Rehman, accused, a photo of complainant, deceased and his own mother was recovered from the pocket of Fazl-urRehman and he does not mention about the recovery of diary and mobile from the accused, whereas Muhammad Hussain IHC (P.W.7) and Shaukat Hussain SG (P.W.8), the recovery witnesses deposed that a mobile, a diary and two photos, out of which one photo was of deceased and the other was of complainant and his mother were recovered from Fazl-ur-Rehman, accused, while a perusal of recovery memo Exh.PD prepared by. S.H.O. Reveals a different story that the other photo was of complainant and the mother of deceased.
23. Thus, all these contradictions appearing in the statements of prosecution witnesses make the recoveries of above mentioned articles seriously doubtful, which amounts to disbelieve the factum of recoveries. Therefore, the recoveries are not sufficient to prove charge against accused. The aforesaid view is fortified from a case reported as Shaman alias Shamoo and 3 others v. The State 2013 PCr.LJ 1829), wherein it has been held as under:-- "It is pertinent to mention that place of recovery is open area and every one, can safely go there, therefore, in such circumstances recovery cannot be proved against the accused. Even otherwise, mere recovery alone, being a corroborative piece of evidence in nature, is not sufficient to prove the charge against the accused, as held in the case of "Muhammad Afzal v. State, reported in 2009 SCMR 436, which is as under:- "112. After taking out from consideration the ocular evidence, the evidence of identification and the medical evidence, we are left with the evidence of recoveries only, which being purely corroboratory in nature, in our view, alone is not capable to bring home charge against the appellant in the absence of any direct evidence because it is well-settled that unless direct or substantive evidence is available conviction cannot be recorded on the basis of any other type of evidence howsoever convincing it may be."
24. It will be worthwhile to note here that the prosecution witnesses Noman Riaz (P.W.2) and Muhammad Riaz (P.W.3) were not found 'Adil' during purgation.
25. It will be important to note here that mother of deceased moved an application before this Court for getting record her statement, which was recorded, wherein she has forgiven Fazl-ur- Rehman, convict-appellant and stated before the Court that her daughter (deceased) was willing to go back to join us, but the complainant did not allow her to go back to the mother and himself murdered her daughter.
26. As discussed above all pieces of evidence furnished by the prosecution are found to be full of doubts and manipulated. Now it is well-established principle of law that if' a single doubt appears in the prosecution evidence, its benefit goes in favour of accused. The aforesaid view finds support from a case reported as More v. The State (2013 PCr.LJ 1730), wherein the following principle was enunciated:-- "'From the above noted contradictions a reasonable doubt existed regarding guilt of the appellant.
It is well-settled law that for the purpose of benefit of doubt to an accused more than one infirmity is not required. "A single infirmity, creating reasonable doubt in a prudent mind regarding the truth of the charge, is sufficient to give benefit of doubt to the accused."
27. We are aware of the fact that an accused can be convicted and sentenced merely on the basis of circumstantial evidence provided no link of chain is found missing and all of circumstances must lead to the guilt of accused. Moreover, if a single link of this chain is missing in such circumstances the circumstantial evidence cannot be relied upon. Every link in such like case should be proved through cogent and convincing evidence and if not, then no conviction could be maintained or awarded to an accused. Furthermore, in a case of circumstantial evidence, an accused cannot be declared guilty on the basis of circumstantial evidence until and unless the facts proved are incomptible with his innocence and are incapable of explanation upon any reasonable hypothesis than that of his guilt. Our this view finds support from a reported as titled Muhammad Iqbal v. The State and 3 others (2013 PCr.LJ 1683), in which the following principle was laid down:-- "(c) That conviction is ordinarily based upon substantive or direct evidence and not on any other type of evidence howsoever convicting it may be. Reference Muhammad Noor versus Member 1, Board of Revenue, Balochistan and others 1991 SCMR 643.
(d) In order, however, to claim conviction in a case depending upon circumstantial evidence, the prosecution must establish four basic requirements:--
(i) The circumstances from which the conclusions are drawn should be fully established.
(ii) All the facts must be consistent with the hypothesis.
(iii) The circumstances should be of a conclusive nature.
(iv) The circumstances should, to a moral sanctity, actually exclude every hypothesis, but the one proposed to be proved. Muhabbat v. State 1990 PCr.LJ 73.
' These principles were also enunciated in the case of State of UP v. Dr. Ravindra Prakash Miltal AIR 1992 Supreme Court 2045. The record of the case nzust show that a chain of events has been interwoven in such a way that its assessment would lead to inescapable conclusion that accused committed the offence. The evidence is not course to be of high quality. It should inspire confidence in the mind of Judge because direct evidence is not before him."
28. In present case, the links of the chain are found missing; therefore, the circumstantial evidence also cannot be relied upon. As discussed above the benefit of doubt appearing in the prosecution evidence always goes in favour of the accused; therefore, following are the reasons and circumstances in favour of convict-appellant:--
(1) It was an unseen occurrence.
(2) The F.I.R. Basically was lodged against Ghazi Khan, accused, and an unknown person.
(3) Fazl-ur-Rehman, convict-appellant was not nominated in the F.I.R. And later on implicated in the case during investigation.
(4) The recovery witnesses are police employees and the Investigating Officer did not bother to associate any independent witness with the recovery proceedings.
(5) The statements of prosecution witnesses clearly show that they, arrived at the spot when the occurrence had taken place; therefore, their evidence is not confidence-inspiring and creates doubt.
(6) Two prosecution witnesses, out of three, were not found 'Adil'.
(7) The complainant himself is not law abiding person, who abducted a lady and married with her.
(8) Mother of deceased appearing in this Court has forgiven Fazl-ur-Rehman, convict-appellant, in the name of Almighty Allah and stated the complainant to be an accused of the murder of deceased.
29. Thus, in the light of above detailed discussion, we are persuaded to set aside the imiiugned judgment and 31-3-2010 and acquit Fazl-ur-Rehman, convict-appellant, too, because the prosecution miserably failed to prove its case against the accused-respondents beyond any shadow of reasonable doubt; therefore, he is acquitted of the charge of murder of Mst. Jamila deceased. He shall be set free provided not required in any other case or offence.
' Resultantly, the Appeal filed by Fazl-ur-Rehman, convict-respondent, is accepted and he is acquitted of the charge, whereas, the Appeal filed by Muhammad Dullah, complainant, merits no consideration, which stands dismissed. A copy of the judgment shall be annexed with other relevant file.